A divided Supreme Court issued two business-friendly decisions today that demonstrate why, under Chief Justice Roberts, it is frequently called the Corporate Court.
In the first of these, Sorrell v. IMS Health, a 6-3 Court (the five usual suspects joined by Justice Sotomayor) struck down a common-sense medical privacy law passed by Vermont. As part of its comprehensive regulation of pharmaceuticals, the state requires pharmacies to retain certain information about prescriptions and the doctors that order them. Knowing that the drug companies would love to take advantage of this information in order to target doctors to sell more of their product, Vermont protected medical privacy by prohibiting the sale to or use of this data by drug companies without the prescribing doctor's authorization.
According to the Roberts Court, the law allows anyone else to use the data for any other purpose and therefore cannot be defended as protecting medical privacy. It therefore characterizes the law as targeting speech based on the identity of the speaker and the content of the message, thereby triggering heightened First Amendment scrutiny (which – surprise, surprise – the privacy protection law fails to meet).
Justice Breyer's dissent recognizes the Vermont law as the standard, commonplace regulation of a commercial enterprise. It doesn't prohibit or require anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view. It simply addresses a problematic abuse of the prescription data. As the dissenters point out, the federal and state governments routinely limit the use of information that is collected in areas subject to their regulation, as pharmaceuticals have been for over 100 years. Surely heightened First Amendment scrutiny should not be triggered by a law that, for instance, prohibits a car dealer from using credit scores it gets for one purpose (to determine if customer is credit-worthy) for another (to search for new customers).
The dissent states that the Court has never before subjected standard, everyday regulation of this sort to heightened First Amendment scrutiny. Yet this is not the first time that arch-conservative ideologues have taken everyday economic regulation and struck it down on the basis of freedoms enumerated in the Bill of Rights. In fact, the dissenters specifically warn of a return to
the bygone era of Lochner v. New York, in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies.
With Lochner, ideologues routinely struck down consumer and worker protection laws as violating the Due Process Clause so they could impose their own policy preferences. Simply replacing Due Process with Free Speech does not suddenly make this radicalism valid.
Back in September, we wrote about Sen. Jeff Sessions’ discovery of what he called the “ACLU chromosome”—according to the senator, a common genetic defect that disqualifies bearers from the federal judiciary.
Well, Dr. Sessions is back at it. TPM has this video of Sessions ranting yesterday about the supposed prevalence of the “ACLU chromosome” in President Obama’s judicial nominees:
As Sen. Mark Udall later pointed out on the Senate floor, it’s unlikely that Sen. Sessions would have a similar reaction to a “Federalist Society chromosome”. While a few of President Obama’s nominees have had a history working with the ACLU—for instance, Edward Chen of California who worked to prevent discrimination against Asian Americans—President Bush made a point of packing the courts with judges who belonged to the far-right Federalist Society.
It’s absurd arguments like Sessions’ that are keeping qualified, well-respected nominees like Chen from even receiving an up or down vote in the Senate. While reports say that the Senate GOP has finally agreed to vote on 19 judicial nominees who they have been stalling despite little or no opposition to their confirmations, four nominees, including Chen, will be left out to dry without even a vote.
And, for the record, the ACLU had this to say about Sessions’ rant:
"Senator Sessions' reference to 'ACLU DNA' in President Obama's judicial nominees should be greeted as a welcome discovery by all Americans, regardless of party. For 90 years, the ACLU has defended the rights enshrined in the Constitution for everyone, regardless of their political beliefs. While not everyone agrees with us on every issue, Americans have come to rely on the ACLU for its unyielding dedication to principle."
"There is a long record of highly respected ACLU-affiliated lawyers who have been appointed to the federal bench, including luminaries such as Supreme Court Justices Thurgood Marshall, Felix Frankfurter, Arthur Goldberg and Ruth Bader Ginsburg. All have demonstrated their dedication to the Bill of Rights in important decisions supporting freedom of speech, the right to due process and gender and racial equality. There are also dozens of highly regarded district court and appellate court judges who have served or serve now on federal benches throughout the nation. Their ACLU background has helped them bring to the judicial system a steadfast commitment to constitutional values and an understanding of the critical role that the judiciary plays in safeguarding them."
"If you ask us, ACLU chromosomes make for a pretty remarkable gene pool," she added.
The American Foundation for Equal Rights has posted a transcript of yesterday's closing arguments in Perry v. Schwarzenegger, the trial challenging the constitutionality of California's ban on same-sex marriage. Theodore B. Olson, the attorney for the couples who are challenging the ban, went straight for the definition of marriage and what it means to individuals and to society.
Here are some excerpts from his closing arguments:
I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry. The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is.
And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it. The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.
Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.
I think it's really important, given what the Supreme Court has said about marriage and what the proponents said about marriage, to hear what the plaintiffs have said about marriage and what it means to them, in their own words.
They have said that marriage means -- and this means not a domestic partnership. This means marriage, the social institution of marriage that is so valuable that the Supreme Court says it's the most important relation in life. The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world.
One of the plaintiffs said, "It's the most important decision you make as an adult." Who could disagree with that?
On the one hand, we have the proponents' argument that it's all about procreation and institutionalizing -- deinstitutionalizing marriage, but was not supported by credible evidence. I couldn't find it. That's the one hand.
On the other stands the combined weight of 14 Supreme Court opinions about marriage and the liberty and the privacy of marriage. The testimony of the plaintiffs, about their life and how they are affected by Proposition 8, and the combined expertise of the leading experts in the world, as far as we were able to find. It is no contest.
Yesterday's protest in front of the U.S. Capitol, organized by Rep. Michele Bachmann, had the usual cast of tea-party extremists. But this time, they were openly assembled by GOP leaders as an official House Republican event. Republican members of Congress stoked the crowd's extremism and gave them their seal of approval.
Dana Milbank described the scene:
In the front of the protest, a sign showed President Obama in white coat, his face painted to look like the Joker. The sign, visible to the lawmakers as they looked into the cameras, carried a plea to "Stop Obamunism." A few steps farther was the guy holding a sign announcing "Obama takes his orders from the Rothchilds" [sic], accusing Obama of being part of a Jewish plot to introduce the antichrist.
But the best of Bachmann's recruits were a few rows into the crowd, holding aloft a pair of 5-by-8-foot banners proclaiming "National Socialist Healthcare, Dachau, Germany, 1945." Both banners showed close-up photographs of Holocaust victims, many of them children.
Not just their extremism and frothing-at-the-mouth hatred of Barack Obama was on display. The crowd's hypocrisy was also on full display. Again from Milbank's column:
[A] man standing just beyond the TV cameras apparently suffered a heart attack 20 minutes after event began. Medical personnel from the Capitol physician's office -- an entity that could, quite accurately, be labeled government-run health care -- rushed over, attaching electrodes to his chest and giving him oxygen and an IV drip. ...
By the time it was over, medics had administered government-run health care to at least five people in the crowd who were stricken as they denounced government-run health care. But Bachmann overlooked this irony as she said farewell to her recruits.
"You," she said, "are the most beautiful sight any of us freedom fighters have seen for a long time."
Talk about hypocrisy - and not just about government-run health care. They say they're "freedom fighters." Whatever principle it is that motivates these extremists, it sure isn't freedom.
Where were they when President Bush claimed that simply by declaring an American citizen an "enemy combatant" - a decision unreviewable by a court or any other entity - he could have that person arrested without a warrant and imprisoned for life without access to a lawyer or an impartial judge?
Where were they when Americans were arrested at Bush events simply for wearing John Kerry tee-shirts and having anti-war bumper stickers? Or when President Bush planned a Total Information Awareness program, in which the federal government would regularly monitor our credit card purchases, our travel, our telephone records, and other everyday activities? Or when President Bush's warrantless wiretapping program was executed in flagrant violation of the law, to say nothing of the Bill of Rights?
Where were they? These "freedom fighters" did nothing.
Perhaps some enterprising journalist will ask people who attended yesterday's staged event where they were when freedom was genuinely threatened during the course of the Bush presidency.
Of course, journalists don't need to ask where the people who organized the event were while Bush was engaged in a war against America’s civil liberties: They were helping him.
When Bill Clinton left the White House, the right wing message machine started pushing they myth that his staff had trashed the place on the way out.
President Bush seems to be doing something similar, but instead of pulling the W’s (or O’s?) off the keyboards, he’s trashing the Constitution.
Among the many midnight regulations that Bush has put in place, is this one which denies thousands of federal employees collective bargaining rights. These kinds of regulations are usually lumped in the anti-worker category, but the Supreme Court has made clear that the right to free association is implicit in the First Amendment. And what's a union if not a peaceable assembly of workers exercising their right to free speech? In the case of federal employees, they're even assembling to petition the government. A triple whammy!
So, yes, you should be angry that Bush took a shot at the labor movement on the way out the door, but he also found one more opportunity to thumb his nose at the Bill of Rights.
Well, thanks to a ruling yesterday by a trio of judges put on the federal bench by President George W. Bush, New York State's efforts to give a modicum of human dignity to airline passengers stuck in planes for hours on the ground may now be for naught.